25 April 2018
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HOUSING LAW NEWS & POLICY ISSUES
 

Labour Party social housing green paper
On 19 April 2018 the Labour Party leader, Jeremy Corbyn, launched publication of the party’s green paper on social housing. He said that the party’s plan involved “two simple steps: build enough housing and make sure that housing is affordable to those who need it”. For the green paper, click here For Jeremy Corbyn’s speech, click here For the National Housing Federation’s response, click here For a response by the Joseph Rowntree Foundation, click here  

Fire safety costs to be met by Barratt Developments
On 19 April 2018 the Housing Secretary, Sajid Javid, welcomed the decision from house builders Barratt Developments to pay for fire safety related costs in a building they developed, relieving the building’s leaseholders of this burden and ensuring that the building will be made safe. Leaseholders living in the Citiscape development in Croydon were told at a residents’ association meeting of Barratt Developments’ decision. The company has said they will cover future and backdated costs relating to employing a fire warden and the removal and replacement of unsafe cladding from this building. For more details, click here

Long-term empty homes – second reading for new legislation

On 23 April 2018 the House of Commons gave a second reading to the Rating (Property in Common Occupation) and Council Tax (Empty Dwellings) Bill. The new legislation will allow councils to charge double the rate of Council Tax on homes left empty for years. Local authorities can currently levy a 50 per cent premium. For the second reading debate, click here For more information about the legislation, see Housing Laws in the Pipeline.

Private rented sector – select committee report

On 19 April 2018 the House of Commons Housing, Communities and Local Government Committee published a report on the private rented sector in which it said that the most vulnerable tenants need greater legal protections from retaliatory evictions, rent increases and harassment so they are fully empowered to pursue complaints about repairs and maintenance in their homes. The Committee is calling on the Government to address a 'clear power imbalance' in parts of the sector, with tenants often unwilling to complain to landlords about conditions in their homes such as excess cold, mould or faulty wiring. The report also called for an urgent review of the Housing Health and Safety Rating System warning which, it said, is unnecessarily complicated leaving non-professionals unclear of the minimum standards required to make a property habitable. For the full report, click here For a summary, click here For the report’s conclusions and recommendations, click here For comment by the Chartered Institute of Environmental Health, click here

Data protection – council fined for identifying owners of unoccupied properties
On 16 April 2018 the Information Commissioner’s Office (ICO) reported that the Royal Borough of Kensington and Chelsea has been fined £120,000 by the ICO after it unlawfully identified 943 people who owned vacant properties in the borough. Names of the owners and the addresses of their unoccupied homes were sent to three journalists who had requested statistical information under the Freedom of Information Act 2000. For further information, click here

Leaked Grenfell Tower report
On 17 April 2018 the Evening Standard reported that “a report prepared as part of the police investigation into the Grenfell Tower fire has uncovered calamitous deficiencies in the installation of the windows, cavity barriers and cladding system, and their failure to meet building regulations”. For the report, click here For a response by the Local Government Association to the Evening Standard’s report, click here

Street homelessness
On 24 April 2018 the House of Commons debated street homelessness. The debate was led by Adam Holloway MP. In advance of the debate, the House of Commons Library published background information on rough sleeping, as well as some suggested further reading materials. For the debate, visit the Hansard website by clicking here For the HoC publication, click here

Affordable housing – section 106 funds
On 23 April 2018 Huffington Post reported that  more than £375m, derived from section 106 agreements, remains unspent by local authorities even though it is earmarked for affordable housing. It says that two-thirds of that sum – £235million – is held by 14 councils. The website explains that under section 106 agreements, developers give councils an amount of money, rather than building affordable homes themselves, which must be used for specific purposes including affordable houses. For the report, click here

Housing and young people – Resolution Foundation report

On 17 April 2018 the Resolution Foundation published a report entitled Home Improvements which “sets out a blueprint for tackling Britain’s housing crisis, including tax reforms to discourage multiple home ownership and better support home ownership among the young, along with support for councils to get more affordable homes built”. The Foundation argues that more should be done to build homes and support young people’s home ownership aspirations. However, it also warns that policy makers cannot afford to neglect a crucial part of Britain’s ‘here and now’ housing crisis – poor quality and insecurity in the private rented sector. For the report itself, click here For a press release by the Foundation, click here For an article by Stephen Clarke of the Resolution Foundation, click here  

Affordable housing supply review – Wales

On 23 April 2018 the Welsh Government announced an independent review of affordable housing supply in Wales. The review, chaired by Lynn Pamment, will: examine the scope for increasing match funding to build more affordable homes, to maximise the number of homes created by the Welsh Government’s contribution to social housing; review the arrangements governing partnership working between local authorities and housing associations; consider the implications of moving to deliver zero carbon homes by 2020, including the role of off-site manufacture and modern methods of construction; review the standards governing affordable housing and advise on whether they require updating; and make recommendations regarding a sustainable rent policy that will both allow long term affordability for tenants and allow viability of existing and new housing developments. The review is expected to issue a report and make recommendations to the Minister by the end of April 2019. For the announcement of the review, click here

Deaths of homeless people

On 23 April 2018 The Guardian reported research by the Bureau of Investigative Journalism which has established that 78 homeless people died on the streets and in temporary accommodation this winter, bringing the number of recorded homeless deaths to more than 300 since 2013. For The Guardian report, click here For the Bureau’s project webpage, click here

Legal advice for housing cases – Labour Party announcement
On 20 April 2018 the Labour Party announced a new policy to restore legal advice in all housing cases. The move, it said, would reverse restrictions to legal advice for housing cases imposed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which came into force in April 2013. Richard Burgon, Labour’s Shadow Justice Secretary said: ““Restoring this legal aid for housing advice will help tens of thousands of people resolve their housing issues and regain their housing rights. Prevention is better than cure and this policy will help stop problems like damp, leaking roofs or faulty electrics from spiralling out of control and causing tenants even greater misery.” For The Guardian’s report of the announcement, click here

HOUSING LAWS IN THE PIPELINE
 

Local Housing Authority Debt Bill
This Bill, which had its first reading in the House of Lords on 4 July 2017, seeks to replace the current regime of limits on local housing authorities’ debt with limits determined by the existing prudential regime for local authority borrowing for non-housing-related purposes. The second reading is yet to be scheduled. For the Bill as introduced, click here To follow progress of the Bill, click here

Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill
This is a Private Member’s Bill introduced in the House of Commons by Karen Buck. The Bill aims to amend the Landlord and Tenant Act 1985 to require that residential rented accommodation is provided and maintained in a state of fitness for human habitation; to amend the Building Act 1984 to make provision about the liability for works on residential accommodation that do not comply with Building Regulations; and for connected purposes. The Bill received its second reading on 19 January 2018. It will begin its Committee stage on a date to be announced. On 14 January 2018 the government confirmed that it would support the Bill. For the Bill as introduced, click here For a House of Commons Library research briefing, click here To follow progress of the Bill, click here

Homeless People (Current Accounts) Bill
This is a Private Member’s Bill introduced in the House of Commons by Peter Bone. The Bill is intended to require banks to provide current accounts for homeless people seeking work; and for connected purposes. The Bill is being prepared for publication. The Bill received its first reading on 5 September 2017. The second reading is due to take place on 1 February 2019. To follow progress of the Bill, click here

Housing (Amendment) Scotland Bill
This Scottish government Bill aims to amend the law on the regulation of social landlords and to reduce the influence of local authorities over registered social landlords. It was introduced on 4 September 2017 and is now at Stage 2. The Stage 1 debate was held on 29 March 2018; for the report of the debate (which commences at page 87), click here For the Bill as introduced, click here For a research briefing on the Bill, click here To follow progress of the Bill, click here

Sublet Property (Offences) Bill
This is a Private Member’s Bill introduced in the House of Commons by Christopher Chope. It is intended to make the breach of certain rules relating to sub-letting rented accommodation a criminal offence; to make provision for criminal sanctions in respect of unauthorised sub-letting; and for connected purposes. The Bill is being prepared for publication. The Bill received its first reading on 5 September 2017. The second reading has been postponed and is now due to take place on 6 July 2018. To follow progress of the Bill, click here

Mobile Homes and Park Homes Bill

This is a Private Member’s Bill introduced in the House of Commons, also by Christopher Chope. It is intended to require the use of published criteria to determine whether mobile homes and park homes are liable for council tax or non-domestic rates; to make provision in relation to the residential status of such homes; to amend the Mobile Home Acts; and for connected purposes. The Bill is being prepared for publication. The Bill received its first reading on 5 September 2017. The second reading has been postponed and is due to take place on 6 July 2018. To follow progress of the Bill, click here

Affordable Home Ownership Bill
This Bill was introduced to Parliament on Tuesday 24 October 2017, also by Christopher Chope, under the Ten Minute Rule and is a Private Member’s Bill. It was said by him to make provision for affordable home ownership; to require the inclusion of rent to buy homes in the definition of affordable housing; to make provision for a minimum proportion of new affordable housing to be available on affordable rent to buy terms; to provide relief from stamp duty when an affordable rent to buy home is purchased; and for connected purposes. The Bill itself has not yet been published. Its second reading has been further postponed to 27 April 2018. To follow progress of the Bill, click here

Creditworthiness Assessment Bill

This Private Member’s Bill was introduced by Lord Buck and had its second reading in the House of Lords on 24 November 2017. The Bill would require certain matters (including rental payment history) to be taken into account when assessing a borrower’s creditworthiness. For the Bill as introduced, click here The Bill will have its Committee stage on 11 May 2018. For progress of the Bill, click here

Regulation of Registered Social Landlords (Wales) Bill

The purpose of this Bill is to amend or remove those powers which are deemed by the Office for National Statistics (ONS) to demonstrate central and local government control over Registered Social Landlords (RSLs). These changes will enable the ONS to consider reclassifying RSLs as private sector organisations for the purpose of national accounts and other ONS economic statistics. The Bill is currently at Stage 3. Stage 3 commenced on 13 March 2018. Stage 3 consideration was due to take place in Plenary on 24 April 2018 to consider amendments to the Bill (as amended at Stage 2). For progress on the Bill, click here and scroll down.

Secure Tenancies (Victims of Domestic Abuse) Bill
This government Bill seeks to make provision about the granting of old-style secure tenancies in cases of domestic abuse. The Bill completed its House of Lords stages on 13 March 2018 and was presented to the House of Commons on 13 March 2018. Committee stage in the Commons has been completed. Report stage will take place on a date to be announced. For the Bill as brought from the House of Lords, click here For a note of impacts, click here For a House of Commons Library Briefing published after completion of the Committee stage in the Commons, click here To follow progress of the Bill, click here

Private Landlords (Registration) Bill

This Bill was introduced to Parliament on 17 January 2018 under the Ten Minute Rule. The Bill seeks to require all private landlords in England to be registered. It is due to receive a second reading on 27 April 2018. The Bill is being prepared for publication. To read the debate on introduction of the Bill, click here To follow progress of the Bill, click here

Leasehold Reform Bill
This Bill, introduced to Parliament on 7 November 2017 under the Ten Minute Rule and sponsored by Justin Madders, makes provision about the regulation of the purchase of freehold by leaseholders; to introduce a system for establishing the maximum charge for such freehold; to make provision about the award of legal costs in leasehold property tribunal cases; and to establish a compensation scheme for cases where misleading particulars have led to certain leasehold agreements. It is scheduled to receive a second reading on 26 October 2018. The Bill is being prepared for publication. To follow progress of the Bill, click here

Homelessness (End of Life Care) Bill

This Bill, sponsored by Sir Edward Davey, was introduced to Parliament on 7 February 2018 under the Ten Minute Rule. It makes provision about end of life care and support for homeless people with terminal illnesses, including through the provision of housing for such people. The Bill’s second reading has been postponed to 27 April 2018. The Bill itself is being prepared for publication. To follow progress of the Bill, click here

Rating (Property in Common Occupation) and Council Tax (Empty Dwellings) Bill
This government Bill was given its first reading in the House of Commons on 28 March 2018. It makes provision, where two or more hereditaments occupied or owned by the same person meet certain conditions as to contiguity, for those hereditaments to be treated for the purposes of non-domestic rating as one hereditament; and to increase the percentage by which a billing authority in England may increase the council tax payable in respect of a long-term empty dwelling. It received its second reading on 23 April 2018. For the Hansard record of the second reading debate, click here The Bill has been committed to committee to be brought to conclusion on 3 May 2018 For the Bill as introduced, click here For the government’s announcement of the Bill, click here To follow progress of the Bill, click here

NEW HOUSING CASES
 

Summers v LB Richmond [2018] EWHC 782 (Admin)
The Applicant sought a statutory review of a Public Spaces Protection Order (“PSPO”) issued by the Respondent on 16th October 2017 pursuant to its powers under the Anti-social Behaviour, Crime and Policing Act 2014 (“the Act”).
The PSPO set out in numbered articles various prohibitions and requirements designed to regulate the behaviour of dog-walkers in Richmond: including, inter alia, picking up dog faeces, keeping dogs on leads in certain areas and exclusions from play areas.

The Act

Section 59 requires two conditions to be satisfied before an order may be made.  The first is that “activities” carried on, or likely to be carried on, in a public place have had or would have a “detrimental effect” on the quality of life of “those in the locality”.  The second requirement, under s.59(3)(a)-(c) is that the effect, or likely effect, of the activities is, or is likely to be, of a “persistent or continuing nature”, such as to make them unreasonableand so as to justify the restrictions imposed by the order.

By s.59(4) a PSPO must first identify the public place which is to be protected – the “restricted area”; it must then set out prohibitions or requirements (or both) which apply to activities in that area. 

The prohibitions/requirements are subject to provisions as to reasonableness: s.59(5). Any evaluation of the reasonableness of specific prohibitions or requirements taken to deal with the “detrimental effect” of activities within a particular area must be a matter of judgment for the local authority, taking into account the particular needs of, and circumstances pertaining to, the local area.

Section 67 provides that breach of a PSPO will be an offence carrying, on summary conviction, a fine not exceeding level 3 (max £1000).  S.68 provides for a fixed penalty regime.

Challenges to the validity of a PSPO are made to the High Court in accordance with the provisions of s.66. The grounds on which an application may be made are (a) that the local authority did not have power to make the order or variation, or to include particular prohibitions or requirements imposed by the order (or by the order as varied) and (b) that a statutory requirement was not complied with in relation to the order or variation: s.66(2).
s.66 is supervisory only, akin to a judicial review. Whilst s.66(2)(a) is apt to embrace challenges to the legality or rationality of a PSPO, allegations of procedural impropriety would fall within s.66(2)(b). Ordinary Wednesbury principles apply to a legality challenge to a PSPO under s.66(2)(a).

The Review

The Applicant sought an order quashing Article 5 which concerned the maximum number of dogs permitted to be walked by one person and parts of Article 6 which described what is meant by keeping a dog under “proper control”.

Article 6 provided:

Article 6 – Dogs to be kept under proper control

(1) A person in charge of a dog in the restricted area shall be guilty of an offence if –
(a) his dog is not kept under proper control; or
(b) his dog causes an annoyance to any other person or animal; or
(c) his dog causes damage to any Council structure, equipment, tree, plant, turf or other Council property.

The Applicant contended that those provisions were unlawful and ultra vires as the statutory requirements under s.59 of the Act were not met.

She also sought to challenge certain parts of the wording of exemptions relating to assistance dogs, as being unfairly discriminatory.

The Judgment

Lady Justice May held that the contents of the Articles under challenge fell to be considered under s.59(5) (rather than by reference to the conditions set out in s.59(2) and (3)): [55].

The task on review was not to decide whether Richmond had tackled the problems posed by dog-walking in the best or most logical way but only whether it acted reasonably, on the evidence, in tackling it in the way it has: [61].

Applying a careful level of scrutiny, the decision to impose a four-dog limit (with conditions as to licences, and review after a year) was reasonable: [56]-[61]. Furthermore, Richmond acted reasonably in seeking to define what is meant by the use of the term “proper control” in Article 6: [62].

However, paras (b) and (c) of Article 6 were objectionable. In short, they added nothing to the requirement to keep dogs under proper control and there was no evidence to justify their inclusion.

As to the discrimination challenge to the exemptions the judge held that she did not have jurisdiction to determine the challenge because ss.113 and 114 of the Equality Act 2010 provided that only the county court may hear and determine a claim for breach of s.29 EA 2010: [87].

The judge acknowledged that the result of this may be a statutory lacuna because, by s.66 of the 2014 Act, only the High Court may hear and determine a challenge to a PSPO. She posited that the answer may be that the public sector equality duty in s.149 represents sufficient protection for persons with protected characteristics who might be impacted by any terms of a PSPO, however the judge had not been addressed on the matter in detail and the Applicant had not sought to rely on s.149 in her grounds or her skeleton argument. For those reasons a final determination on the point would have to await another case where the point was more fully addressed: [88].

Paras 1(b) and (c) of Article 6 were quashed and the remainder of the application was dismissed: [90].

Summary by Alice Richardson, barrister, Arden Chambers and Trinity Chambers.
For the full judgment click here.

 

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HOUSING LAW CONSULTATIONS
 

Supporting housing delivery through developer contributions
Following the announcements at Autumn Budget 2017, the government is seeking views on a series of reforms to the existing system of developer contributions in the short term. These reforms will benefit the local authorities who administer them, developers who pay them and the communities in which development takes place. The consultation closes on 10 May 2018. For more details, click here

Reviewing the landlord registration fee structure and application process – Scotland

The Scottish government is consulting on proposals intended to strengthen the system of landlord registration in a proportionate way that will help to ensure that homes rented to private rented sector tenants are of good quality and are managed professionally. Responses to the consultation will help to shape changes to the application process that will require landlords to demonstrate that they meet their legal responsibilities. They will also inform amendments to the way that fees are charged so that local authorities have enough resources to make informed decisions about who can be approved to operate as a landlord. The consultation closes on 7 June 2018. For more details, click here

Powers for dealing with unauthorised development and encampments

The MHCLG and Ministry of Justice have launched a consultation seeking views on the effectiveness of powers for dealing with unauthorised development and encampments. The consultation asks a series of questions relating to powers for dealing with unauthorised development and encampments, including: local authority and police powers; court processes; trespass; planning enforcement; the provision of authorised sites; and the impacts on the travelling community. The consultation closes on 15 June 2018. For the consultation document, click here

HOUSING LAW ARTICLES & PUBLICATIONS
 

The future fiscal cost of ‘Generation Rent’ Stephen Clarke Resolution Foundation 17 April 2018. To read this article, click here

Cross-party groups give their verdict on renting Dan Wilson Craw Generation Rent 19 April 2018. To read this article, click here

Dispatches from the housing crisis frontline
Letters Guardian 23 April 2018. To read the letters, click here

Youth homelessness is everybody's business
Tamsin Stirling CIH Blog 20 April 2018. To read this article, click here

Errors of law, burden and homelessness appeals
Elizabeth England Local Government Lawyer 20 April 2018. To read this article, click here

Encouraging messages, now Labour must work on the detail
John Perry CIH Blog 23 April 2018. To read this article, click here

It's the shift, not the fix
[a victim-led approach to dealing with anti-social behaviour] Amanda Protheroe CIH Blog 23 April 2018. To read this article, click here

Housing: Recent Developments
Jan Luba QC & Nic Madge Legal Action April 2018 (subscription required). To read this article, click here

Owner-occupiers: review 2018
Derek McConnell Legal Action April 2018 (subscription required). To read this article, click here

HOUSING LAW DIARY
 

27 April 2018                            
Postponed second reading of Affordable Home Ownership Bill (see Housing Laws in the Pipeline)

27 April 2018                            
Postponed second reading of Homelessness (End of Life Care) Bill (see Housing Laws in the Pipeline)

27 April 2018                            
Postponed second reading of Private Landlords (Registration) Bill (see Housing Laws in the Pipeline)

3 May 2018                              
Conclusion of committee stage of Rating (Property in Common Occupation) and Council Tax (Empty Dwellings) Bill (see Housing Laws in the Pipeline)

10 May 2018                            
Consultation on supporting housing delivery through developer contributions closes (see Housing Law Consultations)

11 May 2018                            
Committee stage commences on Creditworthiness Assessment Bill (see Housing Laws in the Pipeline)

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